DFAT warned Bowen on Malaysia’s human rights

The Gillard government has suffered another blow to its “Malaysia solution" with revelations the Department of Foreign Affairs and Trade privately raised concerns about the country’s human rights record just before Immigration Minister
Chris Bowen
ordered asylum seekers be sent there.

The government argued on Monday that the advice was “sufficient" to enable Mr Bowen to order asylum seekers on Christmas Island be removed to Malaysia as part of the deal. The advice was presented by the government to the High Court as part of its defence to a challenge to the asylum deal but has not been public until now.

It reveals that DFAT highlighted how refugees in Malaysia are ­prevented from “sustainable livelihoods or formal education" and how the cost of healthcare was “beyond their means". It also flagged concerns about observance of human rights in Malaysia’s constitution.

“NGOs and international organisations . . . have made credible allegations regarding inadequate standards in immigration detention centres," DFAT said in its advice.

The High Court extended an interim injunction on Monday preventing removals to Malaysia, ruling there was a “sufficiently serious question" to be tried about whether Mr Bowen was legally able to declare it a country to which boat arrivals could be sent.

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It is understood the commonwealth Solicitor-General,
Stephen Gageler
, SC, might use a directions hearing related to the case next week to urge the High Court to deal with the matter expeditiously.

“It is likely we will call for an early hearing,’’ Mr Bowen said yesterday. “There will be people smugglers out there spinning this court case and trying to sell uncertainty.’’

Under the Migration Act, Mr Bowen was required in making the declaration to satisfy himself Malaysia provided effective procedures for assessing claims for asylum, met relevant human rights standards, and provided protection for asylum seekers and refugees.

Refugee advocates have argued that as Malaysia was not obliged by international and domestic law to provide these protections and procedures, the minister was unable to make the declaration. They also argued Mr Bowen needed to consider the situation of all asylum seekers in Malaysia, not just those covered by the refugee swap deal.

The DFAT advice dated May 3 was provided to Mr Bowen as part of a submission from his department recommending he make the declaration.

When he was prime minister,
Kevin Rudd
, who is now Foreign Minister overseeing DFAT, was sceptical of sending asylum seekers to other countries for processing.

In its submission, the Department of Immigration said it was “satisfied" the refugee swap deal satisfied the protections required by the Migration Act.

The DFAT advice to the minister provided substantially less support for the declaration. “Malaysia does not grant refugee status or asylum or have in place legal protections; however, Malaysian authorities generally co-operate with the UNHCR [UN High Commissioner for Refugees]," the DFAT advice said.

“Concerns have been expressed about Malaysia’s record on human rights on specific issues, both internationally and within Malaysia. Illegal immigrants, for instance, are liable to imprisonment and/or fine, and caning of not more than six strokes."

Advice from the UN High Commissioner on Human Rights attached to the ministerial submission said the deal was “workable". But its position was “conditional upon the arrangement being implemented with full respect for human rights standards".

“UNHCR’s preference has always been an arrangement which would enable all asylum seekers arriving by boat into Australian territory to be processed in Australia," it said.

Prime Minister
Julia Gillard
’s asylum seeker strategy was devised to stem the flow of asylum seeker boats and stop people smugglers from selling the prize of resettlement in Australia. It is now in limbo. Despite the ruling, the government will still accept 4000 processed refugees from Malaysia as its part of the deal.

In his judgement on Monday extending the interim injunction, High Court judge
Kenneth Hayne
said there was a “sufficiently serious question to be tried" by the full bench.

This question related to whether the Migration Act permitted a declaration to be made in relation to a country that was legally obliged internationally or domestically to provide the protections required by the legislation.

Mr Gageler argued the minister had relied in part on the protections afforded by the deal in making his declaration. Under questioning by Justice Hayne, he was forced to concede the deal was not “legally binding".

“The political assurances contained in that arrangement read against the background of the assessment made by the UNHCR and the Department of Foreign Affairs and Trade was sufficient to give a level of satisfaction that the criteria . . . would be likely to be met," Mr Gageler said.